OPINION | IPC Section 295 Is Colonial, Must Go. Such Laws Have No Place In Civilised World

India inherited Section 295 of the IPC from the British.

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Renowned cosmologist Carl Sagan, in his famous book ‘Cosmos’, has mentioned Bharatiya wisdom on the creation theory of cosmos. In Chapter X, The Edge Forever, he quotes from Mahapurana: "Some foolish men declare that creator made the world. The doctrine that the world was created is ill advised and should be rejected. If God created the world, where was he before the creation? If you say he was transcendent then and needed no support, where is he now?"

Mahapurana is an ancient Indian text written by Acharya Jinasena and completed by his prodigal pupil Gunabhadra in the 9th Century. And this writing firmly establishes the fact that Bharat and her scholars never knew the concept of blasphemy. 

The ancient Indian civilisation, it is proven, had a good knowledge of metallurgy, mathematics, astrology, and physics, among other things. This was only possible because there was no limit to the quest for knowledge, and no knowledge or wisdom was considered the final frontier of human curiosity. 

The argument stated above, or the whole of Mahapurana, would have attracted death penalty for the Jain monk and scholar in any other society where God is the finality of knowledge and everything. 

Not only in ancient Bharat but even in recent history, Swami Dayanand Saraswati (in 1875) did a critical analysis of Islamic scriptures in his ‘Satyarth Prakash’, and founded Arya Samaj. Can we say this entire samaj is blasphemous because they take Satyarth Prakash as their guiding book?

While the argument here is not if Jinasena was right, or if God is for real, but what I am highlighting is that the scholar had the liberty to say there is no God and that people who think God exists are fools. Christianity and Islam were yet to make their presenece felt in India when Jinasena wrote this, and hence he was referring to the scholars of Bharat who were preaching and practising Vedic Gods or other gods.

This is the soul of Bharat. If you take this away, Bharat will die. More importantly, Jinasena belonged to Jain religion, a different religion from Sanatana or Hindu, and of course, a minority for the purpose of Article 29 and Article 30 of the Indian Constitution.

Blasphemy Law In UK, Which Left India With Section 295 

There is no law in India that expressly deals with blasphemy. But the Indian Penal Code has certain provisions that deal with matters considered blasphemous. Blasphemy as a subset of any law — constitutional or criminal — is a phenomenon introduced in British India (not British Bharat). The law still stands. It is Section 295, Indian Penal Code, 1860. The law requires, objectively speaking, the destruction, damage to or defiling of a place of worship of any class of religion. Subjectively, it requires the intent to insult or at least knowledge that such destruction, damage or defiling would amount to insult. 

Suspended BJP leader Nupur Sharma, who is under fire over her controversial remarks on Prophet Mohammed during a TV debate, faces a case under the sister provision of Section 295A, which is a law against 'hate speech' as it deals with "deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs".

In her clarification posted on social media after the initial outrage, Sharma claimed she was only responding to a provocation, which was ridiculing her own faith. 

Interestingly, the law related to blasphemy that was introduced to India during British rule stands abolished in the United Kingdom now. In 2008, England and Wales abolished the blasphemy and blasphemous libel. As recently as 2021, the British Parliament enacted Hate Crimes and Public Order (Scotland) Act (Hate Speech law), which has prospectively outlawed blasphemy as having criminal consequences. In Ireland, until January 17, 2020, publication or utterances or blasphemous matter defamatory of any religion was a criminal offence as per the Irish Constitution of 1937. Ireland got rid of it through a referendum held in 2018. 

Blasphemy And Hate Speech Are Not The Same

A hate crime is distinguished and distinct from blasphemy. A hate speech is when a person who by his/her speech stirs up hatred against a group of people. Interestingly, Hate Speech Law in Scotland, which prohibits a person to stir up hatred against a group of persons, defines group as racial, colour, nationality, ethnicity or of national origins. The word religious group or religion forming a group for the purpose of the law is conspicuously absent. In Britain, even if you say or publish something that is blasphemous as perceived by any community would not attract any criminal consequences. Section 295 is colonial and an anti-Bharat legislation, which pierces the very idea of Bharat. This law must go, it has no place in any civilised world.

Freedom Of Speech And Expression 

If there is one freedom, which explains the Western civilisation, it is the freedom of speech and expression. Freedom of speech and expression was needed so Darwin could freely write and preach that humans have evolved and not created, so Galileo could explain to his society that the universe is heliocentric and not geocentric. 

Bharatvarasha, as described above through Mahapurana, had already rejected God and His theory of creation. We always had this prized freedom of the West with us for thousands of years, and we should not allow anyone to take it away from us. 

Remarks By SC Judge

In the light of aforementioned legal and constitutional developments in the West, especially the UK, the recent observations by a Supreme Court judge who said Nupur Sharma’s remarks were responsible for the unrest that followed in India, including the beheading of a Hindu man in Rajasthan, raise questions. 

Also, religion is a vanishing point of human rights. In simple words, human rights are the very product of secularism of the West, i.e. separation of politics from church (read religion). I hope, Indian judiciary will uphold it. The Constitution has made freedom of religion as the weakest fundamental rights of all other fundamental rights because it has made it subservient to all other fundamental rights. 

The right to life and freedom of speech and expression is above everything and should be non-negotiable for anyone, including Nupur Sharma.

The author is a PhD fellow at Hamburg University. He has written two books on financial laws.

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